Kothapeta vs Unknown
2023 Latest Caselaw 3831 AP

     THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRIMINAL APPEAL NO.943 OF 2010

ORDER:-

Challenging the Judgment, dated 04.08.2010 in Sessions

Case No.441 of 2009, on the file of Assistant Sessions Judge,

Kothapeta, East Godavari District, the unsuccessful Accused

No.1 filed the present Criminal Appeal under Section 374(2) of

Code of Criminal Procedure, 1973 ("Cr.P.C." for short).

2) The present appellant in the capacity of Accused

No.1 along with Accused No.2 and Accused No.3 faced trial in

the said S.C.No.441 of 2009. The learned Assistant Sessions

Judge, Kothapeta, framed charges under Sections 376 and 420

of the Indian Penal Code ("I.P.C." for short) against A.1 and

Section 420 r/w 34 of I.P.C. against A.2 and A.3 (who are not

appellants herein) and after completion of the trial, the learned

Assistant Sessions Judge, Kothapeta, found the present

appellant guilty of the charges under Sections 476 and 417 of

I.P.C., convicted him under Section 235(2) of Cr.P.C. and after

questioning him about the quantum of sentence, sentenced him

to suffer rigorous imprisonment for seven years and to pay a

fine of Rs.2,000/- in default to suffer simple imprisonment for

three months under Section 376 of I.P.C. and further sentenced

him to suffer imprisonment for six months for the offence under

Section 417 of I.P.C. and that both the sentences as above shall

run concurrently. The learned Assistant Sessions Judge,

Kothapeta, found A.2 and A.3 not guilty for the offence under

Section 420 r/w 34 of I.P.C. and acquitted them under Section

235(1) of Cr.P.C.

3) Felt aggrieved of the same, the unsuccessful A.1

filed the present appeal in the High Court of Judicature at

Hyderabad for the State of Andhra Pradesh and got the sentence

of imprisonment suspended vide order in Crl.A.M.P.No.1449 of

2010, dated 06.08.2010. Therefore, during the pendency of the

present appeal, the appellant is on bail in pursuance of the order

of the Court. When this appeal has become old and aged about

13 years and when this Court has taken up the appeal during

the course of hearing, it is found that the sentence imposed

against the appellant was seven years for the charge under

Section 376 of I.P.C. and other punishment is less than seven

years and that the appeal was numbered before the High Court

instead of Sessions Court. Hence, this Court directed the

Registry to clarify how the appeal is numbered before the High

Court when the appeal would lie to the Sessions Court from the

file of Assistant Sessions Court. As against the above, the

Registrar (Vigilance) FAC. Registrar (Judicial) placed a note that

when the sentence imposed by the learned Assistant Sessions

Court is of seven years, an appeal would lie to the Sessions

Court as per the Standing Order 278-3 and due to inadvertence

Crl.A.No.943 of 2010 was numbered on 06.08.2010 in the

composite High Court. As against the above, now the appeal is

coming for passing appropriate orders.

4) Sri G. Simhadri, the learned counsel for the

appellant, would submit that the appellant is ready to present an

appeal before the Sessions Court and a time may be fixed so as

to enable the appellant to file appeal before the Sessions Court

and further the benefit of the suspension of sentence order can

be continued till the appellant filed the appeal.

5) Section 374 of Cr.P.C. deals with the appeal from

convictions. It runs as follows:

(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years 2 has been passed against him or against any other person convicted at the same trial], may appeal to the High Court.

(3) Save as otherwise provided in sub- section (2), any person,-

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or

(b) sentenced under section 325, or

(c) in respect of whom an order has been made or a sentence has been passed under section 360 by any Magistrate, may appeal to the Court of Session.

6) The above goes to show that if the sentence of

imprisonment imposed against any particular accused is not

exceeding 7 years even from the file of Assistant Sessions Court,

the appeal would lie to Sessions Court. It is only when the

sentence of imprisonment imposed is exceeding 7 years, the

appeal would lie to the High Court. Therefore, it is quietly

evident from Section 374 of Cr.P.C. as well as the Standing

Order 278-3 quoted by the Registry that the appeal would lie to

the Sessions Court, East Godavari at Rajahmundry only, but not

to the High Court. So, it is clear that in the composite High

Court of Andhra Pradesh at Hyderabad, the appeal was

numbered due to inadvertence.

7) Therefore, now the appellant is to be directed to file

appeal before the Principal Sessions Court, East Godavari at

Rajahmundry. This Court is conscious of the fact that since 13

years the appeal has been pending. This appeal could be taken

up for hearing as there is a drive to dispose of the old appeals.

As the appellant is prosecuting the appeal here, he has the

benefit of limitation but he has to file an application separately

before the Sessions Court to condone the delay in filing the

appeal by explaining that he is prosecuting the appeal before

this Court. Apart from this, as already 13 years has been

elapsed from the date of filing of the appeal and still the appeal

could not be disposed, this Court is of the considered view that a

time bound directions need to be given to the Sessions Court to

dispose of the appeal within a particular time. Otherwise, there

is every possibility that the appeal would further lie for another

five or six years before the Sessions Court. As already, the

appellant is on bail on account of the orders passed in

Crl.A.M.P.No.1449 of 2010, dated 06.08.2010, it is proper and

necessary to extend the benefit of order to the appellant for a

limited period so as to enable him to file the appeal before the

Sessions Court.

8) Apart from the above, the Court also examined the

provisions relating to transfer of criminal cases and there is no

provision to transfer a criminal appeal pending on the file of

High Court to the Court of Sessions Court. On the other hand,

any case pending before the trial Court can be transferred to the

High Court. It is quietly evident from Section 407 of Cr.P.C.

Therefore, the proper procedure is to order the appeal directing

the appellant to file the appeal before the Sessions Court.

9) Under the circumstances, the appeal is ordered

accordingly, directing the appellant to file a Criminal Appeal

before the Principal Sessions Court, East Godavari at

Rajahmundry along with a separate application to condone the

delay in filing the appeal by duly explaining that he is

prosecuting the appeal in this Court in Criminal Appeal No.943

of 2010 and on such filing of appeal with delay condonation

petition by giving advance notice to the learned Public

Prosecutor about the delay condonation petition, the learned

Principal Sessions Judge, East Godavari at Rajahmundry shall

pass appropriate orders to condone the delay and shall number

the appeal. It is open to the appellant to file appropriate

application before the learned Principal Sessions Court, East

Godavari or before the Additional Sessions Court in East

Godavari District to which the Criminal Appeal filed by the

appellant may be made over, seeking suspension of sentence in

accordance with the provisions of Section 389 of Cr.P.C. and to

obtain appropriate orders. The Court to which the Criminal

Appeal filed by the appellant may be made over is directed to

dispose of the appeal on merits, in accordance with law, within a

period of three months from the date of numbering and to send

the compliance report to this Court about the disposal of appeal

on merits. The learned Principal Sessions Court, East Godavari

at Rajahmundry is further directed to intimate to this Court

about the numbering of the criminal appeal. It is made clear

that intimation to the High Court regarding numbering of the

criminal appeal and submission of compliance report are two

different aspects.

10) The appellant is directed to appear before the

learned Assistant Sessions Judge, Kothapeta on or before

08.09.2023 and to produce the copy of the suspension of

sentence order that may be granted by the appellate Court and

to produce the sureties. The learned Assistant Sessions Judge,

Kothapeta, is directed to call the matter at Bench on 08.09.2023

to ensure that the appellant would submit the necessary

solvencies along with the suspension of sentence order from the

appellate Court. It is also open to the appellant to offer sureties

in the Court of Assistant Sessions Judge, Kothapeta even prior

to that in case if he is able to get the order early. If the

appellant fails to appear before the Assistant Sessions Judge,

Kothapeta on 08.09.2023, the learned Assistant Sessions Judge,

Kothapeta shall issue Non-Bailable Warrant against the appellant

and after securing his presence as above, shall entrust the

conviction warrant and send the compliance report to this Court.

Even if the appellant fails to produce the copy of the suspension

of sentence order as above, the learned Assistant Sessions

Judge, Kothapeta shall entrust the conviction warrant of the

appellant.

11) The Registry is directed to send the trial Court

record along with the copy of this order forthwith by a special

messenger to the Court of Assistant Sessions Judge, Kothapeta,

in the name of Presiding Officer of the Court on or before

14.08.2023. The Registry is further directed to mark the copy

of this order to the Principal Sessions Judge, East Godavari at

Rajahmundry and the Principal Sessions Judge, East Godavari at

Rajahmundry is directed to intimate the same to the Court to

which the Criminal Appeal filed by the appellant may be made

over about the time bound directions of this Court by enclosing

a copy of this order. The Registry is directed to return the

material papers, if any to the counsel for the appellant.

________________________ JUSTICE A.V. RAVINDRA BABU Dt.08.08.2023.

Note:

Issue C.C. by today.

B/o PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRL.A.NO.943 of 2010

Note:

Issue C.C. by today.

Date: 08.08.2023

PGR